Molu v Molu No 2 [1998] VUSC 15; Civil Case 030 of 1996 & Matrimonial Case No 130 of 1996 (15 May 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 30 of 1996
Mat. Case No. 130 of 1996

PATRICIA MOLU
Plaintiff/Petitioner

AND:

CIDIE MOLU
Defendant/Respon/p>

C Mr Justice Vincent Lunabek, Acting Chief Justice

Counsel: Mrs Merin Mason for the Petitioner/Wife
The Respondent/ Husband in person (not presented)

JUDGMENT

The Petitioner/wife and the Respondent/ husband were married in August 1992. They have the following children:

— Yannick Molu, a male, born on 5 September 1988, now 10 years old.

— Annie-Rose Molu, a female, born on 8 November 1992, now 6 years old.

— Ian Molu a male, born. on 28 March 1994, now 4 years.

The child Yannick Molu lived with the Petitioner's family in Pentecost. He went to school there. The child Annie-Rose Molu, lives with her mother in a rented house in Port-Vila. The child Ian Molu, since February 1996, lives with the Respondent's family in Santo.

The dissolution of the Marriage by a decree nisi was granted and made on 26th September 1996. The custody of the 3 children is disputed by the parties. The issues of child maintenance and the matrimonial property settlement were also disputed. The following properties were disputed by the parties:

1. A piece of land at Freshwota

2. Households items

3. Petitioner's clothing.
In relation to item 3 above, the dispute is about the quantity of the clothing destroyed and their value.

I have therefore 3 issues to deal with:

(1) The custody of children,

(2) The child maintenance, and

(3) The matrimonial property settlement. I will proceed with each of them in turn.

Both parties filed affidavits in support of their claims.

ILD CUSTODY

A. EVIDENCE OF THE PETITIONER ON CHILD CUSTODY

The Petitioner/wife gave evidence to the following effect. She was married to the Respondent on 16 August 1992 and they have 3 children:

• Yannick Molu, a male, born on 5 September 1988;
• Annie-Rose Molu, a female born on 8 November 1992;
• Ian Molu, a male, born on 28 March 1994.

Yannick Molu stayed on Pentecost with her parents. He went there when he was small. Annie-Rose stayed with her and Ian stayed with the Respondent's family in Santo.

s to Yannick Molu.Molu.

She gave evidence that he went to Pentecost 4 years ago. He was happy to stay with her parents on Pentecost. He attended Primary School there. Her parents were happy.

She said if she is given custody of that child, she will leave him there with her parents on Pentecost. He is 8 years old now. He is in class 2. He will spend all his Primary School there. He will come to Vila to attend his Secondary School there. He and will stay with her. He will be free to go and see his father (Respondent). She said the best thing for that child is that he stayed with her parents in Pentecost to complete his Primary Education. She said if the custody is given to the Respondent, it will be difficult for Yannick because he has already spent 4 years in Pentecost. She also said that Yannick went to Pentecost because her parents asked that he stayed with them when he was small and the Respondent also agreed to that.

As to the 2nd childchild : Annie-Rose Molu

She said she was 4 years old. She attended the Catholic kindergarten school at Anabrou, Vila. She never went and stayed with the Respondent's family. She always stayed with her. She said that she was happy to go to school. She said she rent (sic) a room at Anabrou which is big enough for her and the child. She has a full time job at Center Garage. Annie-Rose went to school in the morning and afternoon. They (sic) were kids in the same yard with whom she could play.

Annie-Rose was a healthy little girl. She wants to stay with her. She gave evidence that when she was separated with the Respondent, he went to take her and have lunch with the child just one time. She said the child could go and see her father. She could not prevent her from seeing her father.

As to the 3rd child: Ian Molu

She said he was 2 years. She looked after him until the end of February 1996 after they had problem in the couple life. The Respondent's relatives took him tto. She said, when then they asked her to take Ian to Santo, she was not agreed. They told her they paid her already. Since then, she said she had no news about the child. The Respondent's eldest brother asked her to take care of Ian. She said she did not consent. She said they forced her to take Ian. They took his clothing and took the child by force to Santo.

She said she did not know why they took the child. She said when they took him, they said they paid her (the mother) already. She said the Respondent's family had never asked for her kids before.

She gave evidence that if she was granted custody, she was happy to take him back. She said she was happy if the Court gives her custody of Annie-Rose and Ian. She said she had enough room for them. Since February, 1996 she did not ask to have Ian back in Vila. Ian was a healthy kid. She said she was not worried much. She expressed her wish that Ian is well treated. She said if she can have custody of the children, they will grow up, they can go and see their father. She further said, she does not believe that the Respondent will look carefully after the kids. But his family can. She requested that the custody of all the 3 kids be given to her and when they will grow up, they could go and see their father. She said she could look after all 3 children. Her employer also can assist her, he knows about her problem.

Under cross-examination, she confirmed that the Respondent's eldest brother took the child Ian to Santo. He said they paid her (Petitioner) already. The Child Ian is the product of their hard labour. They must have one of her kids.

She testified also that the child Yannick refused to stay in Vila. He did not like to stay with the Respondent because he used to assault them when he was under the influence of alcohol. She gave evidence about one specific incident when the Respondent threw a pamelo on the child Yannick and he was afraid and went underneath the bed. She further said that if the Respondent wished to have the child back to Vila, he must arrange for his school here in Vila. She finally confirmed her intention to have the custody of the 3 children.

p>B. EVIDENCE OF THE THE RESPONDENT ON THE CHILD CUSTODY

The Respondent testified to the following effect. He married with the Petitioner. It was a religious marriage. He said he paid the Petitioner, 80,000 Vatu, one cow and one pig to the Petitioner’s family. He said all the bad treatment he did to the Petitioner, he was punished for those already. He decided to reconcile with the Petitioner so that they could live again together with the children but the Petitioner did refuse and she asked for divorce. He said the Petitioner can have the divorce, he still loved her with the children.

He gave evidence that he could look after the children with his family. He said his family questioned him about their children and he was told to get the children so that they can look after them. The children's mother was already paid out. The children are for them. He said the 3 children could stay with him and his family and they could visit their mother.

Under cross-examination, the Respondent confirmed the 3 children could stay with him and his family. His father and eldest brother lived in Port-Vila. Asked about how the Petitioner/ Mother would have access to the child Ian, he said, Ian was not attending any school yet. That is why he was taken to Santo with his brother. He said he did not have any difficulty to have Ian back to Vila. The Petitioner could contact his brother in Santo. She used to talk to his brother. He said he also thought about Ian and if Ian came back to Vila, both could have access to him. He also gave evidence that he knew it is important that a young child needs to see his mother. He denied throwing pamelo on the child Yannick. But admitted he slapped him at once.

He denied he got drunk every weekends (sic). He said before, when he was drunk, he was still living with the Petitioner. But today if he happened to be drunk, he will make sure that his children were in security.

The Respondent also said that he could look after the child Annie-Rose. She used to sleep with his sister. It is not a problem for her. He conceded that it might be difficult for a little girl to stay without her mother but when she grows up, she will understand that it is her mother who applied for divorce. He denied that he ever threw a pamelo on the child Yannick as testified by her mother but he agreed he did give a slap to his son Yannick on one occasion because he was too slow to do something he required of him. The Respondent denied he was angry against the Petitioner kept repeating that he loved her with the children. He denied the suggestion that if he got access to the 3 children he will send them to Santo like he did with Ian and he added that Ian was in Santo for a short period of time only.

Having considered the evidence before me on the question of child custody, the following facts were found.

The husband and the wife were married on 16 August 1992 and had 3 children : Yannick Molu, Annie-Rose Molu and Ian Molu. The Petitioner asked the Court to grant custody of the three children of the marriage to her. The Respondent did not accept the Petitioner's application and instead asked that he be granted the custody of each of the three children of the marriage.

An attempt to negotiate an agreement about custody of the children undertaken on 30 September 1996 at the Vanuatu Women's Centre (Vanuatu) was unsuccessful.

Yannick Molu, a male, born on 5 September 1988.

He is on Pentecost Island. The Petitioner's parents requested to have the child with them on Pentecost when he was 4 years old and both the wife and Husband agreed. Yannick attended Primary school there and returns to Vila for school holidays. He is happy there and there is no evidence to the contrary. I accept the general environment which both the Petitioner and the Respondent thought would be better on the island. But I reject the evidence that Yannick wanted to go to Pentecost to escape the behaviour of his father since he was just a little boy (4 years) when he was sent there. [even if the Respondent admitted he slapped him on one occasion]. I accept also the evidence that the Respondent had never requested that Yannick returns to Vila until the application of custody. It is also a fact that if the Respondent is granted custody of Yannick he will return to Vila where the Respondent and his family will look after him. Both husband and wife have indicated their willingness to allow access to the children if they are granted custody. There is no evidence before the Court that Yannick is not well cared for in Pentecost.

Annie-Rose Molu, a female, born on 8 November 1992.

This little girl, who is 4 years old, has always lived mother. This evidence by the Petitioner is not disputed the Respondent. Since the couple separated in November 1995, she has lived with her mother and the Respondent had access to her. Annie Rose attends Kindergarten and the Petitioner pays the school fees of 7.000 Vatu/term. She is a happy and healthy child and that there are no problems with the current custody and access arrangements. There is no evidence from the Respondent to support his claim to the custody of Annie-Rose and I find also that there is no evidence that she was not well cared for by her mother or that she was unhappy in anyway with her living arrangements.

Ian Molu, a male born on 28 March 1994.

The evidence which is not disputed is that Ian was removed from the Petitioner's custody against her wishes by the Respondent's family in February 1996. Since this time she has had no access to the child. It is not disputed that prior to this time Ian had always been in her mother's custody. The child cried a lot when he was taken. The Petitioner wishes to have him returned to her custody and she had indicated that she will allow the father access to the child. The Respondent has had no contact with the child since he was removed in February 1996 as he said in his evidence. It is a fact that the Respondent's intention appears to be that Ian will be raised by his family rather than the child's mother or father. It is also a fact that such an arrangement is not uncommon in Vanuatu but with the consent of the parents. Since February 1996, Ian has now lived in Santo for more than 9 months and removing him there will disrupt the child's life again. The Petitioner conceded that since February 1996, she did no ask to have Ian back in Vila She was not worried much and she believed that the Respondent's family look carefully after the kid.

I now turn to consider the relevant legislative provisions.

Section 15 of the Matrimonial Causes Act CAP 192 provides:

"(1) In any proceedings for divorce or nullity of marriage the Court may, from time to time, either before or after the final decree, make such provision as appears just with respect to custody, maintenance and education of the of the marriage.

(2) For the purpose of this Act the expression "children of the marriage" shall include any child of one party of the marriage (including any illegitimate or adopted child) who has been accepted as one of the family by the other party."

By perusing the language of section 15(1) of the Act, it is clear that the Court may make provision for the custody, maintenance and education of the child of the marriage, as it appears to the Court just to do so. That section gives the Court a wide discretion. In exercising its discretion, the paramount consideration of the Court is not to punish a guilty spouse, but the children's welfare. The father has a common law right to the custody of his children. However, a father's common law right to their custody does not prevail over the children's welfare. That point must be emphasised upon in view of the social and cultural contexts of Vanuatu since in such proceedings, parents and in the majority of cases husbands/ fathers based their application on the mistaken belief that they have some property right to "own" the children and neglected to have any thought whatsoever about how they would care for them if custody is granted to them.

In order to cast any doubt, it is important to refer to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989. That Convention has been ratified by Vanuatu Parliament by Ratification Act No.26 of 1992, which is, therefore, binding on the Republic of Vanuatu [No reservations were expressly provided]. Article 3(1) of the Convention provides:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." [underlined words are my own emphasis].

This Article 3(1) is enforceable by the Courts and no specific legislation is required to implement it as opposed to other Articles of the said Convention.

In any proceedings before the courts for the legal custody or upbringing of a child, or the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, the Court must regard the welfare of the child as the first and paramount consideration and not the punishment of the guilty spouse/parent. This means that, in such proceedings, the Court shall not take into consideration whether from any other point of view the claim of the father, in respect of such legal custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. Importantly, thus, in dealing with such matters, the Court, before reaching a decision which is necessary for the well-being of the child, must take into account the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for or recognised by local custom of a village or island of the country, which is not inconsistent with the Vanuatu Constitution of 1980. That balancing exercise ought to be done in a manner consistent with the evolving capacities of the child so that the best interest of the child shall always prevail in a particular given case.

The terms "custody", "care and control" of the child are not defined by the Matrimonial Causes Act CAP 192. In order to understand the meaning and the intent of the Order of this Court, it is important to note that "custody", in the legal sense, means the parental rights and duties as related to the person of the child (including the place and manner in which the child's time spent). This covers such rights and duties as the rights to the child's physical possession, protect and educate the child. The terms "care and control" is used in the case where a person is given the right to the child's physical possession.

In this case, applying the legal principle to the facts as I found in respect to each of the three (3) children, I come to the following conclusions:-

Custody, care and control of the child Yannick Molu

This boy of 10 years old is on the Island of Pentecost with her mother's (Petitioner) parents for schooling. He will not stay there for ever. He is now doing his primary school. The evidence shows that he will in nearer future change his environment. It will be in the best interest of Yannick that he will remain on Pentecost until the completion of his Primary School. Yannick is also the first son of the couple and the Respondent father said he and his family are ready to look after him. In my view, it will be in the interest of this boy that a joint custody be granted to both the Petitioner/ mother and the Respondent/ father.

He will be under the care and control of his mother/ Petitioner. Care and control of Yannick Molu be extended to the Petitioner's parents on the Island of Pentecost with whom this boy is currently staying to attend his Primary schooling. His father/Respondent will have access during the school holidays and in the future in the event Yannick will attend the Secondary School in Vila, arrangements be made between his parents so that his father can have access to him during the weekends and/or public holidays.

Custody, care and control of the child Annie-Rose Molu

This young little girl stays with her mother. It is a matter of common sense and human experience that she will be better with her mother than her father. She is a healthy little girl and she is happy with her mother. I am of the view that it will be in her best interest that her custody be awarded to her mother and she will be under the care and control of the Petitioner/mother.

The Respondent/father will have access to her (sic) daughter during weekends and/or public holidays on the basis of arrangements to be made between the Petitioner and the Respondent.

Custody, care and control of the child Ian Molu

Ian Melt is the youngest son of the couple. He has been removed from his mother's custody in 1996. He lives with his father's family in Santo for more than 9 months since the hearing of the Petition. There is no evidence that this child is unhappy or his health is in bad condition and is not properly looked after. Her (sic) mother/Petitioner seems to be satisfied that the Respondent's family in Santo looked properly after the child. I express the view that it will be in the interest of this little boy not to disrupt his life again and he will remain with the Respondent and his family. This is an example of the case of a young child "one knows from experience how mercifully transient are the effects of parting and other sorrows, and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends." [see Evershed J. in Re Thain (1925) Ch. 676; (1926) All E.R. Rep. 384.

On that basis the custody of this child be granted to his father and he will be under the care and control of his father. This care and control is extended to the Respondent's relatives. The Petitioner/mother will have access to her son during school holidays and arrangements be made by the Petitioner and the Respondent to that effect.

II-CMAINTENANCENANCE

At the beginning of the hearing on 9 October 1996, the Petitioner's application in relation to maintenance was amended. The first application was for 25,0tu per month, to be mabe made up of 5,000 Vatu per month for each of the three children and 10,000 Vatu per month for the Petitioner. The amended application is for 5,000 Vatu per month for each of the children in the Petitioner's custody. She no longer makes any request for maintenance for herself.

The Respondent also asks for maintenance for the children if the Court grants custody to him of 3,000 Vatu/child/month.

p>EVIDENCE

p>

The Petitioner listed her approximate monthly expenses in her affidavit and she confirmed in evidence that these remained tme, except that her rent is ".now 15,000 Vatu/monu/month. The total monthly amount would be 59,000 Vatu. The Petitioner confirmed that her monthly income from her employment at the Centre Garage is 50,000 Vatu/month. She has no other income.

The Respondent said he is the owner of a kava bar. His evidence was that at his previous kava bar he earned 40,000 Vatu/month and sometimes more. He insisted that at that time, there are only very few kava bar in his area. He mentioned 4 kava bars. However, he said that his current kava bar earns only 20,000 Vatu/month because it is new and he moves to a new area and there are lots of kava bars and there is high competition between kava bars. He said that he is expecting it to increase as he builds up his customers.

The Petitioner estimated the Respondent's income at the previous kava bar at 100,000 Vatu/month from her observations of the amount of money he had to spend. She admitted also, however, that she had no direct knowledge of the income from the kava bar as her husband did not share this information with her.

The facts as found are that, the Petitioner has a monthly income of Vatu 50,000 Vatu. She paid a monthly rent of Vatu 15,000. She has no other income. The Respondent is the owner of a kava bar which earns 20,000 Vatu per month. He expected this to be increased but admitted the competition is very high.

This is a difficult case. Both parents have limited financial incomes to meet the maintenance of each of their 3 children. It is common ground that the 3 children need to be maintained and they have also to be educated.

Under such circumstances, a lump sum be fixed for each. parents to be paid to other spouse who is granted care and control of the child. Also both parents be jointly and equally responsible for the payment of the school fees of their first son Yannick Molu. Further, the Respondent is ordered to pay a lump sum of Vatu 50,000 per year for the maintenance of the children Yannick Molu and Annie-Rose Molu who are under care and control of the Petitioner. The said sum of Vatu 50,000 be paid by the Respondent to the Petitioner every year until the 2 children (Yannick Molu & Annie-Rose Molu) reach the age of 18 years. The Petitioner will pay a lump sum of Vatu 25,000 per year for the maintenance of the child Ian Molu. That lump sum of 25,000 Vatu be paid by the Petitioner to the Respondent until the child Ian Molu reaches the age of 18 years of age. Arrangements be made so that the lump sum can be paid by installments.

These orders can be varied in the event that after each of the child reach 18 years still need to be maintained because he/she is still attending Educational Institute or University or otherwise.

III-MATRIM PROL PROPERTY SETTLEMENT

The Petitioner asks that the Court makes a property order in relation to a block of land at Freshwota and for the burning of her clothes by the Respondent. The Respondent also asks for an order in relation to some household items.

A. LAND ESHWOTSHWOTA

It was agreed by both parties that this land was bought in 1995. The deposit for the land came from the insurance payment of V00,000 for a taxi which was damaged in an accident. Tht. This taxi was purchased by the Respondent during the marriage. There was no dispute that the taxi, and therefore the insurance money, were matrimonial property.

The Petitioner's evidence was that of this 400,000 Vatu, the Respondent received 210,000 Vatu. The Respondent used 100,000 Vatu as a deposit for the land at Freshwater. He put the land in his name and the name of his eldest child Yannick Molu. The Petitioner gave evidence that the value of the land was 417,000 Vatu and that as of October 1996 the balance to be paid was 227,000 Vatu.

The Respondent gave evidence that out of this 400,000 insurance payment, he had received only from his wife/Petitioner 100,000 Vatu. He said he used 80,000 Vatu for the land at Freshwater and used 20,000 Vatu for his kava bar. He said the Petitioner kept 300,000 Vatu and spent on her family. He said he had paid back 140,000 Vatu, 80,000 Vatu of which was the original deposit. He agreed that the land was not in the Petitioner's name.

Both the Petitioner and the Respondent gave evidence that they wanted the land for the children. The Petitioner said she wishes to build a house on the land which she could live in with the children. The Petitioner requests that the Court Order that the land be given to her and that she will then take over the repayments of the land. It is unclear how much remains to be paid for the land and the Respondent said in his evidence that he has not made repayments for some time. He said he had paid 140,000 Vatu but if he has not made repayments for some time the loan may have increased because of interest charges during this time. It is likely that the actual value of repayments made, after interest charges are deducted, would be between 140,000 and 100,000 Vatu at this time.

It is common ground that it would be a sensible way to use the land in the best interests of the children to build a house in which the children could live in it. Both the Petitioner and the Respondent were awarded custody of their children. Considering the fact that both parents contributed to the maintenance of family before they separated in 1995, considering the fact that the Respondent registered the land on his name and the name of the eldest child Yannick Molu and he continued to make repayments of the loan even if he stopped for some time, I am of the view that justice and equity in this case require that the land will remain in the name of the Respondent and his eldest son Yannick Molu as it was initially intended. The Respondent could complete the repayments of the loan and at the same time, continue to run his kava bar so that he would be able to fulfil his duty in maintaining his children as ordered by the Court. The Respondent has no permanent job. The land in question is the only means by which he could operate his kava bar and have some income for his living and maintained (sic) his children.

B. HOUSEHOLD ITEMS

The Respondent asked that the Court Order the return of a number of household items to him, namely ; a doublesize mattress; a large saucepan; and various wedding presenresents.

The Respondent gave evidence that he bought the mattress for 9,000 Vatu before he was married. The Petitioner agreed that this was true but she said that the mattress was bought just before their marriage, for the two of them to use in their married life. She considered it to be part of the matrimonial property.

The Respondent gave evidence that he bought the large saucepan in 1995 for 3,000 Vatu. The Petitioner agreed with this evidence but she said that the Respondent had bought the saucepan in Santo as a present for her and that this was why she had kept it.

In relation to the wedding presents the Petitioner gave evidence that the Respondent had broken all of the cups and plates which they were given. She said this was done when he was drunk and angry. She said there was only one jug left which she had in her possession, and one tray. She said she also had one set of cups. She said that the Respondent had some sets of cups in his possession.

The evidence shows that the mattress is a joint property as it was purchased in anticipation of the couple's marriage. The Petitioner will keep the mattress. The saucepan is the property of the Petitioner because it was a gift to her by her husband/Respondent.

The wedding presents, of which very few remain undamaged, have already been distributed between both parties. It may be that the Petitioner has slightly more than the Respondent but as the Respondent was responsible the destruction of most of the presents, it is reasonable that the Petitioner should be allowed to keep those which she has managed to save from the Respondent's drunken rages.

C. THE PETIR'SNER'S CLOTHING

The Petitioner gave evidence of two (2) occasions on which the Respondent destroyed all her clothes. She asked that the Court order the Respondent to pay000 Vatu to her as rep repayment for the personal property which he destroyed.

The first occasion was in 1994. The Petitioner said every item of clothing was taken from her house. This included even old clothes and underwear. She said that she did not see the Respondent remove the clothes but that because everything was taken including old clothes, she believes it was not a robbery. She also gave evidence that the Respondent had agreed to pay her 100,000 Vatu for the clothes he destroyed and that this offer was an admission that he had taken the clothes on both occasion (sic) the clothes destroyed were valued at 50,000 Vatu.

On the second occasion in 1995, the Petitioner saw the Respondent removed (sic) all her clothes from the house and then burnt them.

Again all her clothes including underwear were destroyed by the Respondent. This second occasion was only a few months after the first time and the clothes destroyed were all new clothes which the Petitioner had bought with her salary. This included all her clothes she needs for work.

The Respondent agreed that he had burnt the clothes on the second occasion in 1995 but questioned how many clothes were destroyed and the value of the clothes. He did not expressly deny destroying the clothes on the first occasion.

The Respondent has admitted the destruction of at least some of the Petitioner's clothes. It is not disputed that to have all her clothes destroyed on two occasions caused the Petitioner considerable distress and expense.

On the basis of these considerations, the Petitioner's request that the Court order reimbursement of 100,000 Vatu is a reasonable request given the amount of clothes destroyed, and the fact that on the second occasion the clothes were all new clothes only recently purchased to replace those destroyed earlier. The Respondent will therefore pay to the Petitioner an amount of 100,000 Vatu for the reimbursement of the clothes he destroyed.

D. ADDITIONAL/ FURT FURTHER SUBMISSIONS OF THE RESPONDENT DATED 6 NOVEMBER 1996.

Surprisingly the Respondent chose to make further submissio the Court at a time when many of the issues he raiseraised had already been determined by the Court.

The Respondent claims that his wife is or has been living with another man. This of course amounts to an allegation of adultery. I must make it clear that as the issue of divorce has already been dealt with and granted by the Court on the grounds of persistent cruelty, this claim by the Respondent is no longer relevant to the Case. This claim by the Respondent is therefore dismissed.

The second part of the Respondent's submission is a claim for damages against the Petitioner.

The Respondent claims first compensation for expenses related to the marriage including

• bride price paid (La Dot) of ........................ 80,000VT
• 7 heads of cattle at 20,000 VT/head ......… 140,000VT
• 1 pig .....................................................….. 15,000VT
• beddings prepared by his sisters ................. 250,000VT

• Custom dressing by his uncles ...................... 90,000VT
• Expenses for food during wedding day ......... 65,000VT

TOTAL……………………………………….... 575,000VT

This is a custom claim by the Respondent for the return of the bride price and wedding expenses from the Petitioner after the divorce was granted. It is important to understand that the amounts spent for this custom claim are not part of matrimonial property and therefore, cannot be considered as part of the property settlement.

It is suggested on behalf of the Petitioner that it may be that in custom the man can ask for the return of the bride price and wedding expenses from the woman if a divorce occurs. However, it is further said for the Petitioner this is not the case in the Court of law and any claim under custom must be made through a custom meeting. The Supreme Court does not administer the custom law.

It has to be understood that the Supreme Court of Vanuatu has unlimited jurisdiction and may entertain any claim including any custom claim. The Constitution which is the Supreme law of Vanuatu provides that custom shall continue to have effect as part of the law of the Republic of Vanuatu [Article 95(3) of the Constitution]. Further Article 47(1) of the Constitution says that:

"...The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter according to substantial justice and whenever possible in conformity with custom."

Of course, custom must first be discovered, then adopted and enforced as law. Any custom claim has to be pleaded but a court should not be bound to observe strict legal procedure or apply technical rules of evidence but shall admit and consider such relevant evidence as is available [including hearsay evidence and expression of opinion], and the Court shall otherwise inform itself as it sees fit. The discovery process to ascertain and prove customary law is by oral testimony of expert witnesses or by witnesses who are not experts in customary law, that is, witnesses of fact. The difference being that the latter are not qualified to give opinions on what customary laws are, but are limited to testifying as to certain historical events from which a court may reach a decision as to law.

There is no doubt that the customary law of the people of Vanuatu and, in particular, custom in relation to the ownership and use of land are justiciable before the Supreme Court of this country. Disputes concerning the ownership of custom land are custom claims and are entertained by the Courts of law of Vanuatu. The rules of custom form the basis of ownership and use of land in the Republic of Vanuatu (Art. 74 of the Constitution). These disputes are entertained before by the Supreme Court on appellate jurisdiction which constitutes also the final custom land Court applying customary law.

More importantly for the purposes of this case, section 4 of the Matrimonial Causes Act CAP 192 says:

"when two persons have been married according to custom, the marriage may be dissolved, annulled or separation ordered only in accordance with custom..."

By perusing the language of the section 4 of the Act above, it is clear that custom claim can be entertained by the Supreme Court at this stage of the proceedings, if the custom claim related to the dissolution of custom marriage validly performed as pursuant to the relevant provisions of the Matrimonial Causes Act CAP 192, the Marriage Act CAP 60 and the Civil Status (Registration) Act CAP 61.

Therefore, the submission that the Supreme Court of Vanuatu does not administer custom law is out of context and without legal foundation.

In the case before the Court, the Respondent gave evidence previously in the Divorce proceedings that he and the Petitioner were married on 16 August 1992 at Port-Vila Catholic Cathedral. Their marriage was celebrated by Father Michel Visi (as he then was). I take judicial notice of that piece of evidence here. He also repeated that evidence in the present proceedings. There is no evidence that the marriage between the Petitioner and the Respondent was a custom marriage performed in a place and according to the form laid down by local custom [of the parties]. [see section 10 of the Marriage Act CAP 601. The evidence before the Court shows clearly that the marriage between the Petitioner and the Respondent was a Religious/Civil Marriage.

In my view, any custom claim ought to be made, if it is relevant to do so, only, in respect to dissolution annulation (sic) or separation of custom marriage, that is, marriage performed in accordance with custom.

There Is a difference between a custom marriage, that is, a marriage performed in accordance with custom and a marriage performed by Civil or Religious authorities having authority to do so. It is not uncommon in Vanuatu that a marriage be it custom, civil or religious one, can be accompanied with various customary celebrations, festivities or local practices and may take days, weeks to mark the occasion. But what is important for the purposes of the custom claim under the Matrimonial Causes Act, is that a custom claim may be made only in respect to dissolution, annulation or separation of a custom marriage, that is, a marriage performed in accordance with custom. There will be per se no custom claim to be entertained in respect to dissolution, annulation or separation of civil and/or religious marriage and in particular, customary celebrations, local practices... occurring subsequent to the performance of the civil or religious marriage, for they are not part of the custom marriage.

Further, there is no evidence at all in support of the claim. This custom claim is, thus, dismissed.

The Respondent then claims for the return of money contributed to the family during the three years of his marriage with the Petitioner. He claims 600,000 Vatu for that.

The claim cannot succeed. The Respondent willingly got married with the Petitioner. They have three (3) children together. The Respondent had a clear moral and legal duty to support this family during this time. A divorce does not entitle him to a refund of this support which is part of his fundamental duty as father and husband in the family he had procreated.

The Respondent lastly claims compensation for illegal imprisonment of 700,000 Vatu. This is clearly not an issue to be brought as part of a divorce case. It is also a claim which is not properly brought against the Petitioner.

Further, there is absolutely no evidence that the Respondent was illegally imprisoned. The three (3) compensation claims are each struck out forthwith.

IGN="CENTER">ORDE>ORDERS OF THE COURT

I - CUSTODY, CARE AND CONTROL OF THE CHILD

A. Custody, carecontrol of the child Yannick Molu

(1) That a joint cunt custody is granted to both the Petitioner/mother and the Respondent/father in respect to the child Yannick Molu;

(2) That the child Yannick Molu be under the care and control of her mother/Petitioner. The care and control of Yannick Molu be extended to the Petitioner's relatives on the island of Pentecost with whom Yannick Molu is currently staying to attend Primary School there.

(3) That the Respondent/father will have access to his son Yannick Molu on the following basis

(a) whilst the child Yannick Molu is on the island of Pentecost to attend Primary school there, arrangements be made by the Petitioner or the Respondent or jointly by both arties (sic) by paying the child return airfares to come to Vila. Once in Vila, he will be under the care and control of his mother/Petitioner and his father/Respondent can have access to his son by taking the child to his residence.

(b) in future, in the event that the child Yannick Molu will attend secondary school:

(i) on an island other than Efate or in a secondary school not close to Port Vila the provisions and arrangements set out in 1(c)(i) will be applied.

(ii) At Port-Vila, Efate, he will be under the care and control of her (sic) mother/Petitioner and his father will have access to him during the weekends or public holidays or any other days and time convenient for the best interests of the child on the basis of arrangements between the Petitioner and the Respondent.

B. Custody, care and control of the child Annie-Rose Molu

(1) That the custody of the child Annie-Rose Molu is granted to the Petitioner/mother.

(2) That the child Annie-Rose Molu be under care and control of the Petitioner/mother.

(3) That her father/Respondent will have access to her daughter during weekends and/or public holidays on the basis of arrangements to be made between the Petitioner and the Respondent.

C. Custody, care and control of the child Ian Molu

(1) That the custody of the child Ian Molu is granted to his father/Respondent.

(2) That the child Ian Molu be under the care and control of his father. Care and control be extended to the Respondent's relatives with whom the child is now living in Santo.

(3) The Petitioner/Mother will have access to her son Ian on the following basis:

Whilst the child Ian Molu is living in Santo and probably attending Primary and secondary school there, arrangements be made by the Respondent or the Petitioner or jointly by both parties by paying the child return airfares to come to Vila. Once in Vila, he will be under the care and control of his father/Respondent and relatives and her (sic) mother can have access to him by taking her son to her residence.

II - MAINTENANCE OFCE OF THE CHILDREN

A. Maintenance of the 2 following children, namely Yannick Molu and Annie-Rose Molu

(1) That the Respondent is ordered to pay to the Petitioner a lump sum of 25,000 Vatu x 2 = 50,000VT per year for the maintenance of the 2 children : Yannick Molu and Annie-Rose Molu until they reach 18 years of age.

(2) That the Petitioner is ordered to pay to the Respondent a lump sum of 25,000 Vatu per year for the maintenance of the child Ian Molu until he reaches 18 years of age.

(3) Both parties may pay the lump sum ordered by instalments.

(4) These orders for maintenance of the children may be amended/varied in the event that after each of the child (sic) reaches 18 years and he/she still attends an Educational Institute or University or otherwise, still needs to be maintained.

(5) Both the Petitioner and the Respondent are jointly and equally responsible for the payment of the school fees of the child: Yannick Molu.

III - MONIAL PIAL PROPERTY SETTLEMENT

A. The land at Freshwota

That the land at Freshwota will remain in the name of the Respondent and his eldest son, Yannilu. The Petitioner's applicpplication seeking a Court Order to give the land to her be refused.

B. Household Items

(1) That the Petitioner will keep the mattress

(2) That the saucepan is the property of the Petitioner

(3) That the Petitioner is allowed to keep these wedding presents she managed to save from the Respondent's drunken destruction and which are now under her custody.

C. The Petitioner's clothing

That the Respondent is ordered to pay to the Petitioner an amount of 100,000 VT for the reimbursement of the Petitioner's clothes he destroyed.

D. Further submissions of the Respondent dated 6 November 1996

(1) That the Respondent's claim that his wife is or has been living with another man, which amounts to an allegation of adultery is no longer relevant to the case and it is therefore dismissed, for the issue of divorce has already been dealt with and granted by the Court on the grounds of persistent cruelty.

(2) That the Respondent's compensation claim for the return of the bride price and wedding expenses from the Petitioner after the divorce was granted cannot be considered as part of the matrimonial property settlement.

That it is a custom claim and is struck out on the basis that the marriage between the Petitioner and the Respondent was not a custom marriage and that subsequently the divorce in this case is not a custom divorce where custom claim be entertained and that finally, there is no evidence in support of it.

(3) That the Respondent's claims for the return of money contributed to the family during the three years of his marriage with the Petitioner, is dismissed.

(4) That the Respondent's claim for illegal imprisonment is struck out.

DATED AT PORT-VILA, this 15th DAY Y 199ro/strong>

BY THE COURT

VINCENT LUNABEK,

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